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Title : Godin v London Assurance Co.
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*419 Godin et Al' v London Assurance Company

9 February 1758

(1758) 1 Burrow 489

97 E.R. 419

1758

Thursday 9th February, 1758. Insurance made by a factor who has a lien,
does not pass by a consignment of the goods insured to a third person by the
principal. [1 Bl. 103, S. C.] [See also 3 Burr. 1397. 1 Durn. 748. 3 Durn.
120.]

[Considered, Ebsworth v. Alliance Marine Insurance Company , 1873, L. R. 8

C. P. 624. Approved, North British and Mercantile Insurance Company v.
London, Liverpool and Globe Insurance Company , 1877, 5 Ch. D. 587.]

This was a point reserved at Nisi Prius, before Lord Mansfield at Guildhall.

The question, strongly litigated there, was “whether the plaintiff ought to
recover his whole loss, or only half:” it being objected “that there was a
double insurance.”

A verdict was found for the whole, subject to the opinion of the Court: and if
the Court should think, upon His Lordship's report, “that the plaintiff, by law,
ought to recover for half his loss only,” then the verdict to be entered up as
for half.

[490] It was argued, yesterday, by several counsel on each side: and this
day,

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Lord Mansfield delivered the opinion of the Court.

He begun with stating the facts, as they appeared to him at the trial; which
were these—

Mr. Meybohm, of St. Petersburgh, had dealings with Mr. Amyand and
Company, of London; who often sent ships from London, to Mr. Meybohm at
St. Petersburgh.

Meybohm, as appeared by the evidence, was indebted, on the balance of

their accounts, to Amyand and Company.

Amyand and Company sent a ship, called the “Galloway,” Stephen Baker
master, to Mr. Meybohm at St. Petersburgh, to fetch certain goods.

Meybohm sent the goods; and promised to send the bill of lading by the next
post, but never did.

Afterwards, viz. in August 1756, Amyand and Company got a policy of

insurance from private insurers, for 11001. on the ship, tackle and goods, at
and from London to St. Petersburgh, and at and from thence back again to
London; which policy was signed by several private underwriters, quite
different persons from the present defendants; and of this sum of 11001.
thus underwritten, 5001. were declared to be on eleven sixtieth parts of the
ship: and the remaining 6001. to be on goods.

Between the 26th August and 28th September 1756, (both included,) Mr.
Amyand *420 insured 8001. more, with other private insurers: and this
latter insurance was upon goods only: and was only at and from St.
Petersburgh to London.

On 28th, 29th and 30th of October 1756, Mr. Amyand insured 9001. more,
with other private insurers: which last insurance was on goods only, at and

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from the Sound to London.

So that the whole sum thus insured by Amyand and Company, was 28001. Of
which 2800l. the sum of 23001. was on goods, the remaining 5001. was on
the ship.

Several letters being given in evidence, it appeared that Meybohm wrote

from Petersburgh, on 7th September 1756, (the date of his first letter on this
subject,) to Amyand and Company; and mentioned what goods he should
send to them, referring to the [491] invoice for the particulars: and directed
them to get insurance thereon, and to place the goods and the insurance to a
particular account, which he named in his letter; in which, he also specified
some iron, which was for Mr. Amyand's own account.

This letter Mr. Amyand afterwards received, (probably, about the 27th of
October:) and, in consequence of it, made the insurance accordingly, upon
the 28th, 29th and 30th of the same October, as before mentioned.

Meybohm, having shipped the goods, indorsed the bills of lading to one Mr.
John Tamesz in Moscow, (the plaintiff, in effect, in the present action:) who
on the 7th October 1756, wrote to his correspondent Mr. Uhthoff, here in
London, “to insure these goods.” In this letter, he desires Mr. Uhthoff to
insure the whole, “that he (Tamesz) might “be safe in all events; for he
suspected that these goods were intended to be consigned by Meybohm to
some body else, and perhaps might be insured by some other persons:” and
he says, they were transferred to him, in consideration of his being in
advance to Meybohm more than their amount. This letter from Mr. Tamesz,
with these directions “to insure,” was received by Mr. Uhthoff, on the 15th of
November 1756.

Mr. Uhthoff accordingly applied to the defendants, the London Assurance

Company; and disclosed to them, at the same time, all these particulars: and
they, upon the 10th of November 1756, after being thus apprised “that there
might be another insurance,” made the insurance now in question, for 23161.
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on the goods, at and from the Sound to London. The goods were lost, in the
voyage.

Mr. Uhthoff's insurance was made by the plaintiffs Godin, Guion and
Company who are insurance brokers: and they declare that this insurance
(which is expressed to be made by them, “as well in their own names, as for
and in the name and names of all and every other person or persons to
whom the same doth, may or shall appertain, in part or in all,”) was made by
order of Henry Uhthoff, Esq. This declaration is indorsed upon the policy; and
is dated 18th November 1756.

There is no doubt, as to the value of the goods, or as to the loss of them.

And it is admitted by the defendants, “that the plaintiff ought to recover half
the loss, from them:” but they say, they ought to pay only half, not the
whole of the loss. So that the only question is,

“Whether the plaintiff is entitled, upon the circumstances of this case, and
upon the facts I have been stating, to recover the [492] whole loss from the
present defendants; or only the half of his loss from them, and the
remainder from the underwriters of Mr. Amyand's policy.”

The verdict is found for the plaintiff, for the whole: but it is agreed to be
subject to the opinion of this Court, upon the question I have just mentioned.

First—to consider it, as between the insurer and insured.

As between them, and upon the foot of commutative justice merely, there is
no colour why the insurers should not pay the insured the whole: for they
have received a premium for the whole risque.

Before the introduction of wagering policies, it was, upon principles of

convenience, very wisely established, that a man should not recover more
than he had lost. Insurance was considered as an indemnity only, in case of a
loss: and therefore the satisfaction ought not to exceed the loss. This rule
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was calculated to prevent fraud; lest the temptation of gain should occasion
unfair and wilful losses.

If the insured is to receive but one satisfaction, natural justice says that the
several insurers shall all of them contribute pro rata, to satisfy that loss
against which they have all insured. *421

No particular cases are to be found, upon this head: or, at least, none have
been cited by the counsel on either side.

Where a man makes a double insurance of the same thing, in such a manner
that he can clearly recover, against several insurers in distinct policies, a
double satisfaction, “the law certainly says that he ought not to recover
doubly for the same loss, but be content with one single satisfaction for it.”
And if the same man really and for his own proper account, insures the same
goods doubly, though both insurances be not made in his own name, but one
or both of them in the name of another person, yet that is just the same
thing: for the same person is to have the benefit of both policies. And if the
whole should be recovered from one, he ought to stand in the place of the
insured, to receive contribution from the other, who was equally liable to pay
the whole.

The Act of 19 G. 2, c. 37, (made to regulate insurances, and for prevention

of wagering policies,) expressly prohibits the reassuring, (after having
already insured the same thing;) unless the former assurer shall be
insolvent, or become a bankrupt, or die: and it provides 1 that even [493] in
those cases, it shall be expressed in the policy “to be a re-assurance.” So
that, here, if Mr. Tamesz had himself made a second assurance upon the
same goods, and was to have had the benefit of both assurances himself, it
had been within this Act.

But if Tamesz was not to have the benefit of both policies in all events, then
it can never be considered as a double policy.

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It has been said “that the indorsement of the bills of lading transferred
Meybohm's interest in all policies by which the cargo assigned was insured;
and therefore Tamesz has a right to Mr. Amyand's policy;” and “that Tamesz,
being the assignee of Meybohm, is the cestuy qui trust of it, and may recover
the money insured;” and even “that he may bring trover, or detinue, for the
very policy itself:” and it is urged from hence, “that he either will or may
have a double satisfaction for the same loss.”

But, allowing “that by the indorsement of the bills of lading and assigning the
cargo to Tamesz, he stands in the place of Meybohm in respect of his
insurances;” yet Mr. Amyand has an interest of his own, and had actually
insured the ship and goods, and the sum of 19001. (upon both together,)
prior to any directions or intimation received from Mr. Meybohm, “to insure
for him.” Various people may insure various interests, on the same bottom:
(as one person, for goods; another, for bottomree, &c.). And here, Mr.
Amyand had an interest of his own, distinct from the interest of Meybohm:
he had a lien upon these very goods, as a factor to whom a balance was due.
And he had the sole interest in the ship: which was a part of the things
insured by him. It is far from appearing, “that even his last insurance (in
October) was made on the account of Meybohm, or as agent for him.” So far
from it Mr. Amyand insists upon it for his own benefit, (as he expressly
declared at the trial,) and absolutely refuses to give it up or to suffer his
name to be used by the plaintiff; though he was a witness for the
defendants, and was produced by them, and inclined to serve them. So that
the foundation of this argument, urged by the defendant's counsel, fails
them; and there is, in reality, nothing to support it.

But even supposing “that Mr. Amyand had made his insurance, not upon his
own account, but as agent or factor for Mr. Meybohm, and upon the account
of Meybohm:” yet, even then Tamesz can never come against Amyand's
underwriters, or come at Amyand's policy, to his own use. For Mr. Amyand,
the factor for Meybohm, has possession of the policy, and appears to have
been a creditor of Meybohm's upon the balance of accounts between them at
the time when he made the insurance: [494] and I take it to be now a

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settled point, “that a factor, to whom a balance is due, has a lien upon all
goods of his principal, so long as they remain in his possession.” Kruzer et Al.
v. Wilcox et Al. was a case in Chancery upon this head. It came on first, 2
before Sir John Strange then Master of the Rolls: who decreed an account;
and directed allowances to be made for what the factor had expended on
account of the ship or cargo; and reserved all further directions, till after the
Master's report. It came on again, afterwards for further directions, after the
Master's report, before the Lord Chancellor: who was attended by four
eminent merchants, who were *422 interrogated by him publicly. After
which, he took time to consider of it; and on 1st February 1755, decreed
“that the factor has a lien on goods consigned to him; not only for incident
charges, but as an item of mutual account for the general balance due to
him, so long as he retains the possession. But if he parts with the possession
of the goods, he parts with his lien; because it can not then be retained as an
item for the general account.” And there was another case, in the same
Court, of Gardiner v. Coleman , a few 3 months after; in which, the former
case, determined as I have mentioned, was considered as a point settled:
and this latter case, of Gardiner v. Coleman , was decreed agreeably to it. So
that Mr. Amyand, even considered as factor or agent to Meybohm, and as
making the insurance upon Meybohm's account is yet entitled to retain the
policy: Meybohm being indebted to him upon the balance of the account
between them: and he has a lien upon the policy, whilst it continues in his
possession. Therefore, even in this view of the case, Mr. Tamesz must first
have paid to Mr. Amyand the balance of his (Amyand's) account, before he
could have gotten that policy out of Mr. Amyand's hands: and consequently,
Mr. Tamesz was very far from being entitled to the benefit of it, as a cestuy
qui trust, absolutely and entirely.

But if the question “whether Tamesz could take benefit of Mr. Amyand's
policy,” were doubtful; yet, here, Tamesz insured the goods with the
defendants, expressly under the declaration of his suspicion “that there
might have been a former consignation, and some former insurance made
upon the goods by some other person;” but he desired to insure the whole,
for his own security; and to this, the defendants agreed; and took the whole

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premium. Mr. Amyand insisted upon his right to the whole benefit of his own
policy, when he was examined as a witness; and is now litigating it in
Chancery. It would neither be just nor reasonable, that Tamesz should only
recover half of his loss from the defendants, and be turned round, for the
other half, to the uncertain event of a long and expensive litigation. I do not
believe there [495] ever will or can be any recovery by Tamesz or those who
shall stand in his place, against Amyand's underwriters. However, if those
underwriters are liable to contribute at all, the contribution ought to be
amongst the several insurers themselves: but Tamesz, the insured, has a
right to recover his whole loss from the defendants, upon the policy now in
question, by which they are bound to pay the whole. For though here be two
insurances, yet it is not a double insurance: to call it so, is only confounding
terms. If Tamesz could recover against both sets of insurers, yet he certainly
could not recover against the underwriters of Amyand's policy, without some
expence; nor without also first paying and reimbursing to Mr. Amyand the
premium he paid, and also his charges. This is by no means within the idea
of a double insurance. Two persons may insure two different interests: each,
to the whole value: as the master, for wages; the owner, for freight, &c. But
a double insurance is where the same man is to receive two sums instead of
one, or the same sum twice over, for the same loss, by reason of his having
made two insurances upon the same goods or the same ship. Mr. Tamesz is
intitled to receive the whole from the defendants upon their policy; whatever
shall become of Mr. Amyand's policy; and they will have a right, in case he
can claim any thing under Mr. Amyand's policy, to stand in his place, for a
contribution to be paid by the other underwriters to them. But still they are
certainly obliged to pay the whole to him.

Therefore, upon these grounds and principles, in every light in which the
case can be put, we are all of us clearly of opinion, “that the verdict is right,
as it now stands, for the whole; and that the

“Postea be delivered to the plaintiff.”

Rule accord.

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Burrow

1. Vide § 4.

2. 12th March 1754. [See also 4 Burr. 2219. 5 New Abr. 270. S. C. Amb. 252.]

3. 2d June 1755.

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